Before getting started on the second blog entry of the week, as mentioned in the first blog entry of the week, a few housekeeping matters are in order. First, it is that time of year again to vote for the ABA 100. I have been thrilled to be part of that for the last four years running and would love to make it five. I know I have lots of loyal readers, and I would greatly appreciate your vote. You can vote here. I have received reports from those seeking to vote on their mobile phone, that you may have a hard time finding the submit button. It is a little arrow in a blue box at the bottom of the screen. People tell me that the problem does not occur if you are voting on a laptop or a PC. Second, leaving for a family vacation to California Sunday. This week my daughter is still home from school, and Saturday, we are going to see the Book of Mormon. So, do not expect a blog entry from me for the week of July 23. Also, since my daughter starts school August 1, it may be the middle of that week before I get a blog entry up. Finally, July 26 is the 28th anniversary of the ADA. Congratulations! It has helped people with disabilities come a long way, but there is still a long way to go.

Turning to the subject of our blog entry, on more than one occasion, I have consulted on behalf of professionals who had licensing’s boards go after them on the basis of their disability. It is a real problem, especially among medical professionals, but not exclusively so. The case of the day, Hobbs v. Florida Board of Bar Examiners, should serve as a wake-up call for licensing boards to reevaluate their behavior or face discovery and possible liability in ADA lawsuits. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning standing; court’s reasoning ripeness; court’s reasoning mootness; court’s reasoning Florida Supreme Court as improper party; court’s reasoning sovereign immunity; court’s reasoning with respect to failure to state a claim; and takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Facts

As a first year student at a Florida law school, plaintiff submitted to the Florida Board of Bar Examiners a Florida Registrant Bar Application. The Board allows and encourages first-year student to do this if they intend to apply for membership in the Florida Bar upon graduation.

One of the questions on the application form is whether the applicant had been treated for any severe thought or mood disorder substance-use disorder within the prior five years. Plaintiff truthfully answered yes because he had been treated at a Veterans Administration Medical Center by a Doctor Michael Stewart, a clinical psychologist. He had diagnosed an adjustment disorder with mixed anxiety and depressed mood as well as alcohol-use disorder. Plaintiff also disclosed that he had been arrested twice for driving under the influence of alcohol.

Plaintiff attributed his conditions to his service in Afghanistan and Iraq where, as an Army captain, he had the responsibility for 175 soldiers while working to counter improvised explosive devices. He submitted the application with the letter from Dr. Stewart, which said that plaintiff had undergone treatment and has made significant progress. It also said that plaintiff would suffer no deleterious effects in the legal profession.

In response to the disclosed information, the Florida Board of Bar Examiners asked for ALL of plaintiff’s medical records. They also insisted that plaintiff submit to a full evaluation, including: a complete medical history and physical examination; a psychiatric evaluation with psychological testing and psycho-social testing; biological drug and alcohol screening on at least two occasions; and a substance use disorder evaluation. The Florida Board of Bar Examiners insisted that these procedures be conducted by one of 11 doctors specified by the Board, only six of whom had offices in Florida and only one of whom had an office in Tampa where the plaintiff was a student. Further, the Florida Board of Bar Examiners said that the plaintiff would have to pay for these procedures at an estimated cost of up to $5000. Finally, the Florida Board of Bar Examiners said that the doctor might also need to conduct inpatient evaluation, but if that was necessary, the doctor would explain the reasons and seek the Florida Board of Bar Examiners permission.

The Florida Board of Bar Examiners did not explain its demand for a complete physical examination even though in the ordinary understanding of the term that would encompass medical information wholly unrelated to anxiety or alcohol-use disorders or fitness to practice law. Also, the Florida Board of Bar Examiners did not explain its demand for a complete medical history back to birth, which would also include information unrelated to anxiety or alcohol-use disorders or fitness to practice law. The Board did tell the plaintiff that he could have an investigative hearing before it. Anybody seeking an investigative hearing must pay a $250 fee.

As a result of all this, plaintiff withdrew his application. However, he still intends to practice law in Florida upon law school graduation, May 2019, and intends to apply for admission to the Florida Bar at that time.

II

Court’s Reasoning That Plaintiff Has Standing

  1. In order to have standing, a plaintiff must meet the following criteria: 1) plaintiff must have suffered an injury in fact. That is, an invasion of a legally protected interest that is concrete and particularized, and actual or imminent (not conjectural or hypothetical); 2) there must be a causal connection between the injury and the conduct complained of; and 3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
  2. Plaintiff applied to the Florida Bar, paid the fee, and was required to disclose extensive private information allegedly in violation of the ADA and the Rehabilitation Act.
  3. Plaintiff was told that his application would be processed only if he submitted to further invasive procedures at substantial cost-procedures plaintiff asserted were unnecessary, violated his privacy, and violated the ADA and Rehabilitation Act.
  4. Plaintiff has already suffered a past injury by paying the fee, having his privacy interests affected, and having to abandon his application rather than suffer further invasive procedures that he alleged would have violated federal law.
  5. Plaintiff alleged that if he applied began, he will suffer the same injury and will be required to pay for and undergo invasive physical and mental examinations. Plaintiff reapplying for readmission is not speculative as he is a law student at a Florida law school and has already tried once to apply to the Florida bar.
  6. Plaintiff is suffering an actual ongoing injury because the only way to avoid giving a yes answer to the mental health treatment question is to wait five years until he was last treated for the mental health condition. Accordingly, since she was last treated in 2016, he would have to wait until 2021 to apply without answering the mental health question in the affirmative, and, in the meantime, would have to forgo treatment until then.
  7. The Florida Board of Bar Examiners procedures force the plaintiff to immediately choose one of three options: foregoing treatment; delaying his application; or submitting to an invasive examination that is alleged to violate federal law. Plaintiff argued “with some force,” (court’s actual words), that providing applicants an incentive to forgo treatment is the wrong approach to mental-health or substance-abuse issues.
  8. Since the Board’s procedures caused the plaintiff’s injury and will cause the same injury again if they are not enjoined or abandoned, there is a clear causal connection between the Board’s procedures and the injuries complained of.
  9. It is certain that the injury can be redressed by a favorable decision because if the court orders discontinuation of the practices in violation of the ADA or Rehabilitation Act, the Board would discontinue the practice.

II

Court’s Reasoning Plaintiff’s Claim Is Ripe

  1. Damages to the plaintiff have already occurred.
  2. Plaintiff is a rising third-year student ranking high in his class and expects to graduate in about 12 months, which is not much longer than it sometimes takes to adjudicate a claim of this kind.
  3. Plaintiff’s prior application and the Florida Board of Bar Examiners response to that application frame the issue sufficiently to make them fit for a judicial decision.
  4. Withholding court consideration not only causes considerable hardship to the plaintiff but to the Florida Board of Bar Examiners and the court as well. That is, it benefits nobody to require the claims addressed on an emergency basis later rather than in an orderly fashion now.
  5. Plaintiff filed a lawsuit in time to allow full and fair consideration of the positions and issues certain to come to a head soon.

III

Court’s Reasoning Plaintiff’s Claim Is Not Moot

  1. Plaintiff’s claim for past damages is not moot because he has asserted the claim and the defendants have not paid it.
  2. Plaintiff seeks an injunction to prevent future violations. That is, he has not abandoned his intention to apply for Florida Bar membership and the Florida Board of Bar Examiners has not abandoned its position that he must submit to the procedures they demanded.

IV

Court’s Reasoning That the Florida Supreme Court Is Not a Proper Party

  1. Plaintiff did not allege that the Florida Supreme Court had any role in processing plaintiff’s application.
  2. Based upon a rule adopted by the Florida Supreme Court, the proper defendant in a lawsuit challenging action taken by the Board of Bar Examiners is the Board of Bar Examiners and not the Florida Supreme Court.
  3. Effective relief can be granted against the Florida Board of Bar Examiners and its executive director regardless of whether the Florida Supreme Court is named.

V

Court’s Reasoning Denying Motion to Dismiss ADA and Rehabilitation Act Claims on the Grounds of Sovereign Immunity

  1. A State waives its 11th amendment immunity from a Rehabilitation Act claim when it accepts federal funds because such a waiver is an unambiguous condition for accepting the funds in the first place.
  2. The Rehabilitation Act waiver only extends to claims based on conduct of the department receiving the federal funds.
  3. While the Florida Board of Bar Examiners itself does not receive federal funds, other entities within the Florida court system do receive federal funds. Accordingly, whether the Florida Board of Bar Examiners has 11th amendment immunity depends upon whether the Florida Board of Bar Examiners is part of the same department as a court system entity receiving federal funds.
  4. A bright line test for determining what constitutes a department doesn’t exist. However, the following matter, but none of them are necessarily dispositive standing alone: how a state organizes offices and personnel; whether units share a budget; whether units are headed by the same person or board; whether employees can be hired and fired or otherwise managed by the same person or board; whether a unit has its own separate budget or its own ranking officer or governing board; and whether units have similar functions or unrelated functions.
  5. The Florida Board of Bar Examiners has repeatedly and successfully in the past insisted that it is an arm of the Florida Supreme Court fully protected from federal lawsuits on that basis. As a result, those decisions combined with the Florida Board of Bar Examiners relationship to the Florida Supreme Court, suggest that for Rehabilitation Act purposes, the Board is part of the same department as the Florida Supreme Court, and therefore, a motion to dismiss the Rehabilitation Act claim fails at this time.
  6. In short, if the Florida Supreme Court receives federal funds, the Rehabilitation Act applies to the Florida Board of Bar Examiners since it is an arm of the Florida Supreme Court. However, if the Florida Supreme Court, like the Florida Board of Bar Examiners itself, does not receive federal funds, then the Rehabilitation Act does not apply to the Florida Board of Bar Examiners. If it is later determined that the Florida Supreme Court does not receive any federal funds, a motion to dismiss the Rehabilitation Act claim on the basis of sovereign immunity can be filed later.

VI

Court’s Reasoning That Plaintiff Has Not Failed to State a Claim

  1. If, as plaintiff alleged, the Florida Board of Bar Examiners required him to submit to invasive procedures and to expend funds not because those requirements serve a purpose in determining his fitness to practice law but only because he has a disability, then the Florida Board of Bar Examiners violated the ADA.
  2. Placing unnecessary hurdles in the path of a person with a disability is exactly is an ADA violation as described in the findings section of the ADA, 42 U.S.C. §12101(a)(1).
  3. The Board does have every right to fully inquire about an applicant’s fitness to practice law. Some mental health conditions are indeed proper subject of inquiry. Driving under the influence in the past is a proper subject of inquiry. After all, an attorney must be able to remain focused and sober in order to handle a client’s business under stressful conditions.
  4. Plaintiff was treated by a well-qualified clinical psychologist at a Veterans Administration facility. Even so, the Florida Board of Bar Examiners refused to rely on that evaluation, which was formed after multiple therapy sessions, and instead insisted that plaintiff undergo an extremely broad evaluation by one of 11 doctors chosen by the Florida Board of Bar Examiners.
  5. No evidence exists that any of the 11 doctors chosen by the Florida Board of Bar Examiners could match plaintiff’s Doctor’s expertise in dealing with conditions secondary to participation in war.
  6. While the Florida Board of Bar Examiners may believe that a patient’s own treating professional may be unduly supportive of the patient or even that a Veterans Administration professional may be unduly supportive of the veteran, it is also possible to believe that a professional who routinely accept referrals from the Florida Board of Bar Examiners may be overly demanding of an applicant with a disability.
  7. Plaintiff’s complaint plausibly alleges that the scope of the evaluation the Board demanded was not reasonably related to plaintiff’s fitness to practice law.

VII

Takeaways

  1. As I mentioned above, the actions of licensing boards against persons with disabilities because of their disability is a real problem across a variety of disciplines and throughout the country. This case means that there is now a decision saying licensing boards need to be aware that the ADA and the Rehabilitation Act need to be dealt with. Accordingly, many of their practices will need to be reevaluated.
  2. Sovereign immunity arguments may actually come back to bite a defendant with respect to whether sovereign immunity is waived when it comes to the Rehabilitation Act claims. That is a bit counter-intuitive, but the reasoning of the court makes sense.
  3. As the system is set up now, people trying to get into the profession, whatever that profession may be, have a disincentive to deal with their MH problems before they get into the profession. That doesn’t make a lot of sense. This case may help change that.
  4. Plaintiff here was a very sympathetic figure having served in Afghanistan and Iraq as an Army captain and having had the responsibility for 175 soldiers working to counter IED’s.
  5. As I have said elsewhere in this blog, especially in the employment context, it is one thing to ask for documentation to see how to deal with an accommodation request, but that request must be reasonable. Same is true with respect to licensing boards, which are a public entity under title II of the ADA.
  6. If you are licensing entity, make sure in addition to asking for narrowly focused documentation, that you do an individualized analysis so that you are not insisting on a resolution that doesn’t match the applicant’s disability.
  7. Don’t forget about direct threat, which we have discussed numerous times in this blog entry, such as here.
  8. Placing unnecessary hurdles in the path of a person with a disability is exactly what the ADA and for that matter the Rehabilitation Act were designed to prevent against.
  9. The five year window for mental health as by the Board has been held to be permissible in litigation around the country. The problem was not the question per se, but rather the Board’s reaction to the affirmative response.
  10. The Rehabilitation Act, with some exceptions such as hospitals and places of education (29 U.S.C. §794), only extends to departments taking federal funds and not to all of the operations of the entity.
  11. Licensing boards may want to reconsider automatic evaluations of applicants regardless of the evidence. Further, when such evaluations are called for, licensing boards will want to make sure that the evaluator is qualified for the particular set of conditions the applicant is faced with.
  12. ADA cases do have to deal with sovereign immunity and that can get complicated. A nice workaround is where the end of the accept federal funds, then you can go with a Rehabilitation Act claim. Keep in mind, two things. First, with some exceptions, as noted above, the federal funds must track the offending department. Second, causation is different under the Rehabilitation Act (solely by reason of), than it is under the ADA (by reason of), but that, such as in this case, may not matter.
  13. Training, training, training, and more training on the ADA/Rehabilitation Act is needed for licensing boards.

Before getting started on the first blog entry of the week, a few housekeeping matters are in order. First, it is that time of year again to vote for the ABA 100. I have been thrilled to be part of that for the last four years running and would love to make it five. I know I have lots of loyal readers, and I would greatly appreciate your vote. You can vote here. I have received reports from those seeking to vote on their mobile phone, that you may have a hard time finding the submit button. It is a little blue arrow at the bottom of the screen. The problem does not occur if you are voting on a laptop or a PC. Second, leaving for a family vacation to California next Sunday. This week my daughter is still home from school, and Saturday, we are going to see the Book of Mormon. So, do not expect a blog entry from me for the week of July 23. Also, since my daughter starts school August 1, it may be the middle of that week before I get a blog entry up. To make up for it, I am posting this blog entry and anticipate getting another blog entry up as well. Finally, it is still my plan to get an ADA version of what the recent Supreme Court nominee has done. However, that will take me some time to sift through the cases. It appears that there are about 21 cases that he has been involved with involving disability rights, but I don’t know that for sure yet. In any event, I have some time on that.

 

Turning to the blog entry, this blog entry discusses statistics on the ADA that the U.S. Courts just put out, which can be found here. Here are the highlights:

  1. For the year 2017, 10,773 filings in the federal court system were ADA cases. That amounted to 4% of the total civil docket and 27% of civil rights cases.
  2. From 2005 to 2017, employment ADA cases rose 196% to 2,494. Nonemployment ADA cases grew even more rapidly increasing 521% to 8,279 cases.
  3. In 2017, more than half of ADA cases were filed in California, Florida, and New York.
  4. The U.S. Courts said that the California filings may be related to the fact that California has a very strong disability discrimination law that links to the ADA. I should point out that recently, California amended that law to make architectural claims under the California law a bit more difficult.
  5. U.S. Courts said that in Florida testers may be contributing to the growth in ADA filings. It notes that Florida recently passed a law aimed at curbing ADA related lawsuits, which, of course, would only apply under Florida law.
  6. In New York, the age of many public buildings and infrastructure across New York City may be contributing to the increase filings. The U.S. Courts notes that the Metropolitan Transportation Authority of New York City had a class action approved against it for the lack of elevators at many subway stops.
  7. The U.S. population is getting older.
  8. It notes the Winn-Dixie case, which we discussed here. It says this case is the first ADA case raising a public accommodation claim related to website accessibility and speculates that the decision could open the door to filings of similar suits. I should point out that the phrasing is a bit weird because as we have discussed numerous times in the blog, this is not the first case discussing online sites as a place of public accommodation. It is the first case that went to verdict, but strangely the U.S. Courts doesn’t phrase it that way. A much larger issue to me than Winn-Dixie are the cases we discussed in this blog entry.
  9. Looking at the map of numeric changes in filing the ADA cases from 2016-2017, filings are way down in Arizona, Texas, and even Florida. Filings were way up in New York, California, Nevada, and Utah. It will be interesting to see whether the filings continue to go up in California and Florida in light of the recent State laws that were passed.
  10. After Utah, Colorado comes in with the fifth highest increase in filings for 2016-2017. After Colorado, comes Pennsylvania and then it drops off considerably after that. Both Colorado and Pennsylvania have disability discrimination laws that plaintiff may be what plaintiffs are turning to in addition to the ADA.

In all the years I have been blogging, the number of times I have blogged more than once a week is about three I believe. So, why am I making an exception now? Well, my next few weeks are going to be really weird. My daughter comes home from camp on Monday after four weeks. She then has two weeks at home before we all go on a family vacation to California for a week. Once we get back from that, she starts school August 1. Also, I have a bit of give in my schedule at the moment, and so I figured why not. Finally, there is a Supreme Court nominee decision coming up next Monday, and I am figuring that my next blog will be analyzing the nominee’s record when it comes to understanding the rights of persons with disabilities. It may take some time to go through all the relevant opinions. So, with that in mind, our case of the day is Pfendler v. Liberty Dialysis-Hawaii, LLC out of the Ninth Circuit decided July 2, 2018. It is a really short case, but it contains a lot of useful information about dealing with essential functions. As usual, blog entry is divided into categories and they are: facts; court’s reasoning reversing summary judgment for the employer; and takeaways. Since the blog entry is so short, I can’t imagine the reader will not read the whole thing. In any event, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff suffered a non-work-related shoulder injury and was granted a medical leave in January 2012. Between March and December 2012, he asked to return to work with a lifting restriction that started at 30 pounds and then went up to 50 pounds. The employer rejected those proposals relying on a written job description that lifting 75 to 100 pounds was an essential job function. At the District Court level, the court held that he was not qualified because he could not perform the essential function of the job as listed by the employer, and he appealed.

II

Court’s Reasoning Reversing District Court’s Summary Judgment in Favor of the Employer

  1. The employer bears the burden of production for establishing what are the essential functions of the job.
  2. A job’s essential functions are fundamental duties not the marginal functions of the position.
  3. Plaintiff testified that he only had to tilt the dialysis recliners and never had to lift one up. Further, evidence in the record existed from another person in the same position that the most weight lifted on a regular basis would be about 40 pounds, a figure within the doctor’s restrictions. So, a question of fact existed as to whether the 75 to 100 pounds was an essential function of the job. Therefore, summary judgment for the employer was not appropriate.
  4. If the lifting requirement was an essential function, plaintiff may have been entitled to an accommodation that the employer waive the formal lifting condition.

III

Takeaways

  1. I have said for years that the best way to think of essential functions of a particular job is in terms of fundamental duties of the position. It is always best if you keep it simple.
  2. This decision notes that the burden of production is on the employer with respect to what are the essential functions of the job.
  3. Just because the employer says something is essential in a job description does not mean that the employer automatically wins. What is happening on the ground is critical. So, make sure your job descriptions reflect the reality of what is actually happening. It is a good idea to periodically review job descriptions just to make sure they are accurate. Job descriptions always go out of date over time.
  4. The court statement that “If the lifting requirement was an essential function, plaintiff may have been entitled to an accommodation that the employer waive the formal lifting condition,” is simply not correct. That is, an employer is under no obligation under the ADA waive an essential function of the job. However, the employer does have to determine whether the essential functions of the job can be performed with or without reasonable accommodations.
  5. With respect to essential functions of the job, focusing on fundamental duties is the most simple way to go about it. However, for complicated situations, take a look at the EEOC seven factors test and three situation test, which can be found here, to flesh things out. In the vast majority of situations, the fundamental duties approach will solve your problems, but not always.
  6. Case law exists saying that a function can be essential even if it is not done very often. A fellow blogger, Eric Meyer, whose blog The Employer Handbook appears in my blogroll, discussed such a case here.
  7. Whether a person has a disability under the ADA does not depend upon how that person incurs that disability.

Happy Fourth of July holiday everyone!

 

Today’s case, National Association of the Deaf et. al. v. State of Florida et. al., comes to me from Courtney Cunningham who has been working this case for some time. The National Association of the Deaf (by way of disclosure, I have known the Executive Director of NAD for years), also stepped in. As usual, the blog entry is divided in the categories and they are: facts; issues presented; holdings; court’s reasoning sovereign immunity; court’s reasoning failure to state a claim; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Also, a heads up with respect to the following two weeks. My daughter comes back from camp on Monday after being away for four weeks. So, next week could be really interesting. With respect to the following week, my daughter starts school August 1 (I know we start really early here), and so a blog entry might not go up until the middle of that week. Now, turning to our case of the day…

 

I

Facts

The Florida Senate and Florida House livestream their legislative proceedings through a website and maintain archives of those videos. Florida State University also owns or operates a website that livestreams legislative proceedings and maintains archived recordings of such videos. The videos are not captioned. Videos are also posted on social media and those are not captioned either. In July, 2017, Sierra, a Deaf individual and a member of NAD sent a letter to the Florida Senate and to the Florida House requesting that they provide captions on the videos of their legislative proceedings. Neither responded to his letter or provided captions. NAD then filed a complaint against the Florida Senate and the Florida House with the Federal Communications Commission, probably because of this blog entry, different case involving the same plaintiff. That complaint was closed in March, 2018. NAD brought suit on behalf of its members, which included the complaining party, seeking monitory and injunctive relief. Defendants through the Florida Channel (a public affairs programming service wholly funded by the Florida legislature and produce and operated by Florida State University’s PBS station), responded to the FCC complaint by saying the Florida Channel produces a 24 hour television programming feed that is closed captioned. Any segment of legislative videos aired on that program are captioned. It also livestreams legislative proceedings, which is separate from the 24 hour television program. Those videos, which come from a different source than the captioned video displayed on the 24 hour television program, are put up on the Internet and made available to the public but do not include captions.

 

II

Issues Presented

  1. Is sovereign immunity applicable?
  2. Did plaintiffs fail to state a claim?

III

Holdings

  1. No
  2. No

IV

Court’s Reasoning regarding Sovereign Immunity

  1. A trend in the courts exists stating that absent the need to vindicate a fundamental right or protect a suspect class, Congress may not abrogate a State’s sovereign immunity.
  2. Relying on a decision from the Western District of Oklahoma, the court said that the plaintiff had a fundamental right of access to publicly available information needed to participate in the democratic process. Also, the Western District of Oklahoma noted that in enacting the ADA, Congress found pervasive discrimination by State governments against persons with disabilities, including the deaf and hard of hearing with respect to judicial resources.
  3. Plaintiffs are not seeking just any public information, but information going to the very heart of the democratic process-the text of legislative proceedings. Accordingly, the fundamental right to participate in the democratic process is involved.
  4. Even if the fundamental right to participate in the democratic process is not involved, sovereign immunity is still forcibly waived because Congress found pervasive discrimination by State governments with respect to those with hearing loss.
  5. Justice Breyer in his dissent in the Board of Trustees of the University of Alabama v. Garrett documented more than a thousand instances of State discrimination against those with hearing loss in a variety of contexts.
  6. In the ADA’s findings section, 42 U.S.C. §12101(a)(3), Congress noted discrimination against individuals with disabilities in a variety of critical areas, including access to public services.
  7. Adding captions to legislative videos removes a barrier to access for a service already provided to those who do not have a hearing loss. Further, the ADA allows defendants certain affirmative defenses. Accordingly, title II of the ADA is a congruent and proportional application of the 14th amendment and sovereign immunity is forcibly waived.
  8. Sovereign immunity does not apply where the plaintiff seeks prospective injunctive relief against individuals heading State entities, which is the case here.
  9. Where a State receive federal funds, sovereign immunity is waived. It is simply too early in the case absent discovery to reach the conclusion that the State does not take federal funds.

V

Court’s Reasoning Failure to State a Claim

 

  1. Stating a claim under title II of the ADA or §504 to Rehabilitation Act means showing: 1) plaintiff is a qualified individual; 2) plaintiff was excluded from participating in a public entity’s services, program, or activities; and 3) plaintiff was discriminated against because of his disability.
  2. Citing to the case we discussed here, the court said whether plaintiff was excluded from the public service turns on whether he had an equal opportunity as someone without a disability.
  3. Florida Channel’s response to plaintiff’s FCC complaint indicated that some legislative proceedings are broadcast with close captioned but not all. A person without a hearing loss gets to watch all legislative proceedings online, but a person with a hearing loss may watch only those legislative proceeding that the Florida Channel chooses to broadcast. That does not constitute an equal opportunity.
  4. Proving deliberate indifference as we have discussed previously, means showing that the defendant knew that harm to a Federal protected right was substantially likely and failed to act on that likelihood. Here, allegations in the complaint are that the plaintiff gave defendant notice of the alleged violations of title II of the ADA and §504. Further, NAD filed a complaint with the FCC prompting a response from defendants. Also, Sierra sent letters to the Florida House and to the Florida Senate, which the defendants never responded to. Finally, defendants response to the FCC complaint indicates no intent to change their current practices.

VI

Takeaways

  1. If you are a State legislature streaming legislative proceedings live, you better be sure they are captioned.
  2. Accessing publicly available information needed to participate in the democratic process is a fundamental right and therefore, any discrimination is subject to strict scrutiny.
  3. Language in the opinion suggests that with respect to discrimination against people with hearing loss, title II may be across-the-board, a permissible use of the equal protection enforcement clause.
  4. Sovereign immunity does not apply to injunctive relief.
  5. If you are representing a State agency and claim that you do not receive federal funds, that by itself, will not get you a motion to dismiss165
  6. .
  7. Whether a person is excluded from a program, service, or activity turns on whether that person has an equal opportunity as someone without a disability.
  8. As we discussed in the blog entry noted above, deliberate indifference but not mean the same thing as deliberate indifference in tort law.
  9. Due to what deliberate indifference means, it makes a great deal of sense for a plaintiff to issue a demand letter before filing suit under title II of the ADA. Such a letter would put the defendant on notice that a Federal protected right was involved and that they may be failing to act on that likelihood.

 

Have a safe and happy Fourth of July everyone!

I hope everyone is enjoying the summer. Here in  the Atlanta area, it has gotten really hot, which is to be expected this time of year down here. I just recently got back from Savannah from training municipal judges throughout Georgia on some hot issues they face with respect to the ADA. They were a great audience, and I had a blast.

Turning to today’s blog entry, website accessibility is back in the news. In particular, just how successful can a company be in fending off website accessibility litigation. Also, we will discuss why website accessibility litigation is here to stay, and we will try to read some tea leaves as to how the Supreme Court will deal with the issue. Before proceeding further, my colleague, Richard Hunt, and also blogger has an excellent blog entry this week talking about how it when it comes to website accessibility, your best choice is to fix it rather than contest it. Do you really want to be the Supreme Court test case? That blog entry also mentions a recent case from the 11th Circuit, Haynes v. Hooters of America LLC, where the 11th Circuit allowed a website accessibility case to proceed. As usual, the blog entry is divided into categories and they are: why you don’t want to be a test case; Haynes v. Hooters of America, LLC; and lessons learned from Haynes and takeaways. The reader is free to focus on any or all of the categories.

I

Why You Don’t Want to Be the Test Case: South Dakota v. Wayfair, Inc.

As most of you know by now, the Supreme Court on June 21, 2018, held that States could tax Internet only businesses consistent with the U.S. Constitution. Several statements from that decision strongly suggest that the Supreme Court would likely hold that businesses that are only on the web are places of accommodation under the ADA. Let’s explore those statements.

  1. “The physical presence rule has been the target of criticism over many years from many quarters.” I have not done a law review survey of whether the few cases holding that the ADA title III provisions only applies to physical spaces have been the target of large-scale criticism. I have certainly criticized it in this blog. It would not surprise me if others have as well.
  2. “And while Nexus rules are clearly necessary, the Court should focus on rules that are appropriate to the 21st-century, not the 19th [citation omitted]. Each year, the physical presence rule becomes further removed from economic reality…” As the Court notes, “it is an inescapable fact of modern commercial life that a substantial amount of business is transacted with no need for physical presence within the State in which business is conducted.”
  3. Paraphrasing, a physical presence rule creates rather than resolves market distortions. Certainly, that is true in the case of website accessibility litigation. That is, a holding that website only businesses do not have to comply with the ADA distorts the market because businesses with a physical presence do have to comply with an elaborate set of architectural guidelines. Such a policy creates a subsidy for Internet only business.
  4. “But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether companies happen to have a physical presence in the State… In other words, …, A small company with diverse physical presence might be equally or more burdened by compliance costs than a large remote seller.” This is especially so when it come to the ADA Architectural Guidelines for physical spaces, which can be quite involved.
  5. “And it is certainly not the purpose of the commerce clause to permit the judiciary to create market distortions.” Certainly, a get out of jail free card to website only businesses creates market distortions.
  6. Paraphrasing, worse still, [a physical presence]… rule produces an incentive to avoid physical presence in multiple States. That means the market might currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. True, the Supreme Court was referencing tax collection here, but the incentive is exactly the same when it comes to website accessibility.
  7. “… When the day-to-day functions of marketing and distribution in the modern economy are considered, it is all the more evident that the physical presence rule is artificial in its entirety.” Also, paraphrasing here, modern e-commerce does not align analytically with a strict physical presence test. Again, the Supreme Court was referring to tax collection here, but the same analysis applies to website accessibility.
  8. “But it is not clear why a single employee or a single warehouse creates a substantial nexus while physical aspects of pervasive modern technology should not. For example, a company with the website accessible in South Dakota may be said to have a physical presence in the State via the customer’s computers. A website may leave cookies saved to the customers hard drives, or customers may download the company’s app onto their phones.” The impact of this paragraph on whether website only businesses must be accessible to persons with disability can’t be overstated. This particular paragraph strongly suggests that a customer when accessing a business on the web is actually in that place.
  9. “The dramatic technological and social changes of our increasingly interconnected economy means that buyers are closer to most major retailers than ever before-regardless of how close or far the nearest storefront.” Absent websites being accessible, this would not apply to persons with disabilities.
  10. A business may be present in the State in a meaningful way without that present being physical in the traditional sense of the term. A virtual showroom can show far more inventory, in far more detail and with greater opportunities for consumer and seller interaction than might be possible for local stores.” Further, “this Court should not maintain a rule that ignores the substantial virtual connection to the State.” Another indication that the Supreme Court recognizes that a person accessing an Internet only business is really in fact accessing that place in a way that may even be superior to being in the store itself.
  11. “Yet the physical presence rule undermines that necessary confidence by giving some online retailers and arbitrary advantage over their competitors….” That is, as mentioned above, website only businesses would not have to worry about accessibility for persons with disabilities but physical stores do.
  12. “Further, the real world implementation of commerce clause doctrines now makes it manifest that the physical presence rule… Must give way to the far-reaching systemic and structural changes in the economy and many other societal dimensions caused by the cyber age.”.
  13. 89% of the American public has Internet access.
  14. “The Internet’s prevalence and power have changed the dynamics of the national economy.” Why should people with disabilities be excluded from that?
  15. “Last year, e-commerce grew up four times the rate of traditional retail, and it shows no signs of any slower pace.”

In short, there is much language in this decision that plaintiffs can use to counter defense arguments that websites do not have to be accessible to persons with disability.

II

Haynes v. Hooters of America, LLC

On June 19, 2018, the 11th Circuit in a published decision dealt with the issue of whether a company sued once before for website inaccessibility can fight off a nearly identical lawsuit with someone else on the grounds that they previously settled a nearly identical lawsuit. The 11th Circuit said a company can’t do it that way. That is, the company had to fight the second lawsuit. In its reasoning, the 11th Circuit also gives a roadmap as to how a company can fend off numerous website accessibility lawsuits. Let’s look at the reasoning of the court first.

  1. While the prior settlement agreement is in effect, the only person who can enforce any rights under it, is the plaintiff in that case. Once that agreement expires, no one has any rights under it. That is, plaintiff was not a party to the prior settlement agreement. Therefore, if Hooters does not remediate its website in accordance with that settlement agreement, the plaintiff has no way of enforcing the remediation plan.
  2. Nothing in that prior settlement agreement requires Hooters, either before or after it expires, to continuously update and maintain its website to ensure it remains accessible to the blind. Further, because the parties in the prior case voluntarily dismissed the case and the District Court did not retain jurisdiction to enforce the settlement agreement, the court could not order Hooters to abide by it.
  3. While Hooters may be in the process of updating the accessibility of its website, nothing in the record demonstrates that Hooters has successfully done so.
  4. Plaintiff requested an injunction against Hooters if it does not bring its website into compliance with the ADA. Plaintiff also requested in his complaint that the District Court direct Hooters to continually update and maintain its website to ensure that it remain fully accessible.

III

Lessons Learned from Haynes and Takeaways

  1. Web content accessibility guidelines 2.0, which has now been amended to 2.1, continues to be the gold standard for accessibility of websites. Keep in mind, the ADA requires meaningful access. Accordingly, flexibility exists as to what meaningful access is. Nevertheless, web content accessibility guidelines 2.0 et al remains the gold standard.
  2. This case makes it in the interest of both a plaintiff and a defendant to put in a clause in when settling saying that the defendant will continuously update and maintain its website to remain accessible to persons with disabilities. It also might make a great deal of sense to go with a consent decree rather than a settlement so that the court can retain continuing jurisdiction.
  3. Once you enter into any kind of settlement agreement, get cracking on it.
  4. Reading tea leaves with respect to what the United States Supreme Court will do is always dangerous business. However, the South Dakota v. Wayfair decision sends a pretty clear message that this Supreme Court recognizes how the universe has changed with technology, and that it may be a thin reed indeed to say that the ADA only applies to a physical space. Also, the Supreme Court has been very favorable to people with disabilities outside of the employment context.
  5. As my colleague Richard Hunt points out in his last blog entry, credit unions have had some success in dismissing cases based on standing saying that the person who could not access its website could not possibly be a member and therefore, a credit union had no obligation to that person. That may work, but it won’t work once a person with a disability eligible for membership in that credit union runs into trouble with accessing its website.
  6. The language in the Supreme Court opinion discussed in this blog entry combined with the Department of Justice Amicus brief in the case we discussed here, strongly suggests that the courts now have license to move to the ScribD line of cases when deciding whether an Internet site is a place of public accommodation. That is, if the Internet site engaged in any one of the categories laid out in 42 U.S.C. §12181(7) then it is a place of public accommodation and subject to the ADA. Wayfair’s gateway language is so broad that one wonders whether the gateway theory would not just fall by the wayside in favor of whether one of the categories of a place of public accommodation is involved.

One of the topics that we have discussed before (see here for example), is transgender individuals alleging that they have been the victims of disability discrimination. Recently, transgender plaintiffs have also had success in alleging that they are the victims of sex discrimination as sex discrimination includes stereotyping based on gender, which by definition discrimination against a transgender person is. The case of the day is Doe v. Massachusetts Department of Corrections decided by United States District Court of Massachusetts on June 14, 2018. As usual, the blog entry is divided into categories and they are: facts; issues presented; holdings; court’s reasoning; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

I

Facts

A transgender woman was assigned to a men’s prison as a result of her birth being a man even though since her teenage years, she has identified as a woman, including hormone treatments etc. As you might expect, being transgender in a men’s prison created all kinds of problems. If you are a fan of Orange Is the New Black, the problems arising are easily imagined and are amply detailed in the case itself. As an aside, Massachusetts recently passed a Criminal Justice Reform Act mandating respecting the gender identity of a prisoner, but that law comes too late for this particular plaintiff. Since she was unable to get a transfer to a woman’s prison, she brought suit alleging violations of the ADA, the Rehabilitation Act, and §1983 vis-à-vis the 14th amendment to the U.S. Constitution. She sought injunctive relief seeking the following:

(1) transfer Doe to MCI-Framingham [a DOC facility for women]; (2) enjoin Defendants from using male correctional officers to conduct strip searches of Jane Doe, except in exigent circumstances; (3) enjoin Defendants from forcing Jane Doe to shower in the presence of men and with a shower curtain that does not adequately cover her; (4) enjoin Defendants from treating Jane Doe differently than other women held by the DOC; (5) train all staff on how to appropriately accommodate, treat and communicate with individuals with Gender Dysphoria within 60 days of this order; (6) enjoin Defendants from using male pronouns when speaking to or about Jane Does; (7) enjoin Defendants from referring to Jane Doe by her former male name (or any abbreviated version thereof); (8) refer to Jane Doe by her chosen female name; and (9) award such other relief as is just and proper.

The Department of Corrections filed a motion to dismiss for failure to state a claim.

II

Issue Presented

  1. Is gender dysphoria a disability under the ADA/Rehabilitation Act?
  2. Does the ADA’s exclusion for gender identity disorders apply to this case?
  3. Is the ADA’s exclusion of gender identity disorders not resulting from physical impairments unconstitutional under the 14th amendment to the U.S. Constitution?
  4. Are services, programs or activities involved?
  5. For equal protection purposes, what level of scrutiny does a transgender individual get?
  6. Have there been sufficient allegations for the plaintiff to allege due process violations?

III

Holdings

  1. Yes
  2. No
  3. Probably
  4. Yes
  5. Intermediate scrutiny
  6. Yes

IV

Court’s Reasoning

  1. A person born with gender dysphoria is born with circulating hormones inconsistent with their gender identity and, in the plaintiff’s case, requires lifelong treatment for gender dysphoria, including the administration of female hormones. As such, she is incapable of reproduction. So, the major life activities that are substantially limited are both endocrine and reproductive functions.
  2. 42 U.S.C. §12211(b)(1) removes from the protection of ADA the following: transvestism; transsexualism; pedophilia; and gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
  3. As medicine has evolved over the years, gender dysphoria has come to mean something different than gender identity disorder. That in and of itself is sufficient to raise a disputed question of fact as to whether gender dysphoria falls outside of the ADA’s exclusion of gender identity based disorders as Congress understood it 28 years ago.
  4. It is possible that gender dysphoria results from physical causes, and plaintiff raised a disputed question of fact with respect to herself on that score.
  5. The current diagnosis of gender dysphoria in the DSM-V requires attendant disabling physical symptoms, in addition to manifestations of clinically significant emotional distress.
  6. Where the government draws a distinction against a historically disadvantaged group and where that distinction has no other basis, that is a reason to undermine the discriminatory classification rather than uphold it.
  7. If you look at the list that “gender identity disorders not resulting from physical impairments,” is contained within, it is paired with conduct viewed by society as criminal or immoral or even lewd. That raises a serious question as to the perspective the drafters of this particular provision had when enacting it. Also, included in that list are: compulsive gambling; kleptomania; pyromania; and psychoactive substance use disorders resulting from current illegal use of drugs. All of those are activities are illegal, dangerous to society, or the result of harmful vices.
  8. Squaring the exclusion of otherwise bona fide disabilities without remedial purpose of the ADA simply can’t be done. That is, the remedial purpose of the ADA is addressing discrimination against individuals with disabilities based on antiquated or prejudicial conceptions of how they came to their station in life. Accordingly, to the extent the ADA can be read as excluding an entire category of people from its protection because of their gender status, that reading is best avoided.
  9. Although the language of the ADA talks about services, programs, or activities, in reality that phrasing refers to prohibiting all discrimination by a public entity (check out this blog entry as well). As such, the ADA’s broad language brings within its scope anything a public entity does.
  10. Plaintiff also sufficiently alleged a disparate impact claim because she had been put into a prison environment contrary to a critical aspect of her prescribed treatment of being allowed to live as a woman.
  11. Where a state creates a classification based on transgender status, that is a classification based on sex and therefore, gets heightened judicial scrutiny above the rational basis test i.e. intermediate scrutiny.
  12. For discrimination against the member of a group subject to intermediate scrutiny to survive, that discrimination must serve important governmental objectives and be substantially related to the achievement of those objectives.
  13. The Department of Corrections did not meet its burden of demonstrating that housing her and other similarly situated transgender prisoners in facilities corresponding to their birth sex serves important governmental interest.
  14. Generalized concerns for prison security are insufficient to meet the burden of proof imposed by intermediate scrutiny. In particular, the allegations of the complaint are that the Department of Corrections houses inmates according to the biological sex without regards to particularized considerations. For example, disciplinary problems or security risks, neither of which were applicable to the plaintiff.
  15. For a due process claim to survive, a prisoner has to show that: 1) the state, through the duration and conditions of confinement, imposed atypical and significant hardship on the prisoner giving rise to a protected liberty interest; and 2) the state deprived the prisoner of the process the prisoner was due to protect that interest. The plaintiff alleged more than sufficient facts to show that she had to deal with atypical and significant hardships in relation to the normal incidents of prison life as compared to other inmates in the Massachusetts prison system.

V

Takeaways and Thoughts

  1. Early on in the opinion, the court states this: “in addition to demonstrating that she has a physical or mental impairment that substantially limits one or more major life activities, Doe must also establish a record of such an impairment, or being regarded as having such an impairment by representatives of the public entity in question, generally in the form of an adverse action or actions.” This statement is simply not correct. It is true that every ADA or Rehabilitation Act claim requires an adverse action. However, that is quite a different kettle of fish than saying of the three prongs of what it means to have a disability, two of them must be satisfied. That is simply not the case. Satisfying an actual disability, or a record of a disability, or being regarded as having a disability all get you coverage under the ADA. You don’t need to have more than one of them.
  2. I have now seen the movie RBG twice (once, while visiting a buddy in Columbia, Missouri, and once, with my wife), and am hoping to see it a third time with my daughter when she returns back from camp. From that movie, I learned that RBG, then attorney for the plaintiff, tried to get the Supreme Court to buy off on sex-based discrimination being put in a suspect class, but ultimately proved unsuccessful by one vote. As we have discussed before, equal protection jurisprudence all turns on what category the individual falls within: strict scrutiny-race; intermediate scrutiny-sex-based discrimination; or rational basis-everyone else. Here, once the court decided that intermediate scrutiny applied, the game was over for the defendant. It is extremely difficult for a defendant to justify discrimination once the intermediate scrutiny or higher level is applied.
  3. My concern with the equal protection jurisprudence is that it’s incredibly divisive. For example, this decision put transgender in the intermediate scrutiny category. However, unless you are talking about access to the courts, we know it is extremely unclear where persons with disabilities fall into. For example, persons with disabilities per this case are in the rational basis class when it comes to employment. Everything else depends upon the facts.
  4. With this decision, you have an individual that gets protection under the ADA and the Rehabilitation Act but then even though that is a disability, receives higher equal protection clause protection because transgender is sex-based discrimination. If a prisoner has a different disability other than transgender, it is entirely possible that person would get a lower level of scrutiny than intermediate scrutiny. Hard to believe that this is where equal protection jurisprudence takes us, but it does.
  5. Blanket policies are never a good idea when it comes to the world of the ADA. See this blog entry for example.

I am a little bit late with an entry this week. However, I have a good excuse. My 14-year-old daughter went off to overnight camp for the first time. She will be gone 4 weeks! That leaves my wife and I empty nesters. This is going to take some getting used to.

The blog entry of the week is actually an Office of Civil Rights Letter dated July 15, 2016, that appeared in the Disability Compliance for Higher Education publication by Wiley, which I highly recommend for anyone dealing with disability compliance issues in higher education. There are lots of lesson to be learned from that letter. Also, there is a statement made in there that has everyone hopping, and we will discuss that. As usual, the blog entry is divided into categories and they are: true or false; answers; how well did you do; and explanations. While there are a bunch of categories, I can’t see why you wouldn’t read the whole thing.

I

True or False

  1. If a student refers to her dog as a pet even though she says it is needed to accommodate a disability, one can automatically deem it a pet.
  2. Only two questions are allowed if it is not obvious that the dog is a service dog.
  3. An emotional support animal can never be a service dog.
  4. Reasonable documentation can be obtained to assess whether an animal is an emotional support animal.
  5. Reasonable documentation cannot be asked for in order to assess whether a dog is a service dog outside of the employment context.
  6. A person with a service dog or an emotional support animal must carry an ID card certifying that the animal is a service animal or an emotional support animal.
  7. A College or University can take action if the dog is behaving in an out-of-control manner.
  8. A dog that fends off impending anxiety attacks of a student by licking her face and pawing at her to let her know that an anxiety attack is likely to occur is a service dog.
  9. A college may not require an individual to register a service animal.
  10. Emotional support animals are only applicable to residential facilities in campus housing pursuant to the Fair Housing Act.
  11. A) While comfort animals are not considered service animals under the ADA, they may be considered a necessary accommodation under §504; B) an institution has the obligation to engage in the interactive process… C) to assess an individual’s need for this accommodation. This is the statement referenced above.
  12. Emotional support animals can include other animals besides dogs.

II

Answers

  1. False
  2. Unclear
  3. False
  4. True
  5. True
  6. False
  7. True
  8. True
  9. True
  10. True
  11. A) not buying; B) true; C) not buying with respect to emotional support animal throughout campus.
  12. True

III

How well did you do?

If you got all 12 right, consider yourself best in show.

If you got 10 right, consider yourself as winning best in your group, but you want to move up to best in show certainly.

If you got 7-9 right, consider yourself as winning best in breed, but you certainly want to move up to winning your group and eventually best in show.

If you got below seven right, you need to have a trainer come in and/or consult knowledgeable legal counsel.

 

III

Explanations

  1. A student may not realize the difference between a pet and a service dog under the ADA. To the student, they may think of their service animal as a pet. When it comes to determining whether it is a service dog, what they think is not dispositive. The question is whether the dog has been trained to engage in recognition and response.
  2. We have discussed this issue in this blog entry. As I mentioned in that blog entry, my original understanding was that only two questions are allowed. If you look at the Department of Justice frequently asked questions publication, it uses the term, “only,” as does the OCR letter. On the other hand, how can you engage in the interactive process, which you are required to do under titles I-III, if you are so limited in the question you can ask even when narrowly focused follow-up questions can be posed if the answers are unclear?
  3. If a person is using a dog as an emotional support animal, it’s entirely possible that it also could be a service dog if it is acting in recognition and response mode and has been trained to do that.
  4. The Fair Housing Act does allow for reasonable documentation to be obtained to assess whether an animal is an emotional support animal.
  5. The ADA final implementing regulation do not allow for documentation to assess whether a dog is a service dog outside of the employment context.
  6. A person with a service dog or an emotional support animal cannot be required to carry documentation stating that the animal is a service animal or an emotional support animal.
  7. If a dog is behaving in an out-of-control manner, then action to exclude the service dog can be taken. The owner of the service dog is responsible for its care and handling.
  8. This dog is engaging in recognition and response and clearly has been trained to do that. Keep in mind, professional training is not necessary for the dog to be a service dog.
  9. Nothing wrong with a voluntary registration process. The problem with that approach is that voluntary often turns into mandatory. Also, since the questions for service dogs are so limited, a voluntary registration process may lead to people asking questions they are not allowed to ask.
  10. The Fair Housing Act applies to dormitories as we discussed here. It does not apply to the rest of the College and University. For the rest of the College and University, it would be the ADA (title II or title III), and §504 of the Rehabilitation Act. Accordingly, emotional support animals can be limited to residential facilities in campus housing. See also ¶ 11 below
  11. A) comfort animals are not considered service animals under the ADA; B) institution to have the obligation to engage in interactive process with respect to a student with a disability; and C) an institution does not have the obligation to engage in the interactive process with respect to allowing the emotional support animal throughout its campus despite what this letter from the Office of Civil Rights says. In particular, nothing in title II or title III DOJ’s final implementing regulations suggest emotional support animals must be allowed everywhere. In fact, the inference is exactly the opposite. Also, nothing in the §504 regulations suggest that emotional support animal should be allowed everywhere. Finally, since there are no regulations that have gone through the proper commenting process dealing with §504 and emotional support animals, I don’t see how a court would give deference to the interpretation of this regional office of OCR with respect to emotional support animals possibly being allowed everywhere. In short, to my mind, a College or University is on very solid ground in restricting an emotional support animal to the dormitories/living facilities.
  12. The Fair Housing Act allows for animals besides dogs to be emotional support animals. Colleges and universities are given latitude with respect to animals that pose a health or safety risk to others. You also want to make sure you check your local and state laws regarding animals that are permissible in dwellings.
Col. Johnny

Hope everyone had a happy Memorial Day weekend. I have mentioned from time to time that I use a service dog in the house. But what does he look like? The above picture is the answer. Say hello to Col. Johnny, a four-year-old miniature poodle.

Today’s blog entry is about animals. I thought it would be interesting to look at recent Oklahoma legislation and then, explore a recent enforcement guidance from the Department of Transportation on Nondiscrimination on the Basis of Disability in Air Travel issued on May 23, 2018. DOT is also seeking comment on that. As usual, the blog entry is divided into categories and they are: Oklahoma legislation; my thoughts; DOT interim statement of enforcement priorities; and my thoughts on DOT’s enforcement guidance. The reader is free to focus on any or all of the categories.

I

Oklahoma Legislation

The Oklahoma legislation recently signed into law, HB 3282, and effective November 1, 2018, focuses on service animals and emotional support animals in the context of landlord and tenants. It isn’t a long piece of legislation. Its salient points are:

  1. “Assistance animal,” encompasses both what the ADA calls a service animal as well as an emotional support animal.
  2. If the person making the request has a disability or disability-related need for an assistance animal that is not readily apparent, then the landlord may request reliable supporting documentation that: 1) is necessary to verify the person meets the definition of disability under the Fair Housing Act; 2) describes the need for the accommodations; and 3) shows the relationship between the person’s disability and the need for the requested accommodation.
  3. The landlord can independently verify the authenticity of any supporting documentation.
  4. Supporting documentation acquired through purchase or exchange of funds for goods and services is presumed to be fraudulent supporting documentation.
  5. A landlord is not liable for injuries by a person’s assistance animal permitted on the landlord’s property as a reasonable accommodation to assist the person with disability.
  6. A person knowingly making a false claim of having a disability requiring the use of an assistance animal or making a claim by knowingly providing fraudulent supporting documentation in connection with such a claim, subjects themselves to procedures under the Oklahoma residential Landlord and Tenant Act, 41-132. Further, if the landlord proceeds to evict that person and prevails in the eviction, the court can award costs and fees, plus damages not to exceed $1000 from the tenant.

II

My Thoughts

  1. My concern with this legislation is ¶ 4. Presumably, whenever a physician or provider provides a note for an individual with a disability to support a service animal or an emotional support animal, one would think that there is a charge for that service. The plain language of this particular provision would make it impossible for such documentation to be obtained unless the provider did it for free. Obviously, the concern with the legislation was to stop people from buying documentation or vests from online suppliers without any individual analysis from a qualified professional being done first. However, the plain meaning of the legislation seems to go a lot further than that.
  2. Since any documentation or goods obtained through an exchange of funds is presumed fraudulent, that puts the burden of proof on the person with a disability to prove that the animal is an emotional support animal or a service animal. The plain meaning of the statute is such that a landlord can now force a person with a disability to go through legal proceedings first before they allow a service animal or an emotional support animal. Again, that could not have possibly been the intent of the legislation, but it literally suggests that. Such a reading arguably also interferes with federally protected rights, which do not contain any such requirements.
  3. I am not an Oklahoma attorney. So, be sure to consult one if you have any questions on this law.

III

Department Of Transportation’s Interim Statement of Enforcement Priorities

  1. Comments on the interim statement of enforcement priorities are due June 7, 2018, next week.
  2. DOT intends to exercise its enforcement discretion by focusing its resources on ensuring that U.S. carriers continue to accept the most commonly used service animals (dogs, cats, and miniature horses), for travel. Other kinds of animals will be enforced by DOT on a case by case basis.
  3. DOT is okay if airlines limit passenger to transporting one emotional support animal, and they are okay if airlines limit passengers to transporting a total of three service animals. So, what this means is that DOT is okay if airlines adopts a policy allowing a person to take anywhere between 1, 2, and or 3 service animals with them.
  4. With the exception of emotional support animals and psychiatric service animals, carriers may not otherwise require advance notice for passengers traveling with service animals.
  5. When deciding to accept an animal as a service animal, airlines have to determine both whether the passenger is an individual with a disability and whether the animal is a service animal.
  6. If a person’s status as an individual with a disability is unclear, i.e. not clearly visible, then the airline personnel may ask questions about the passenger’s needs for a service animal. Such a question might be, “how does your animal assist you with your disability?” A credible response mean that the passenger had given enough information to establish that he or she is a person with a disability and that the animal is a service animal. Airlines have a right to insist on the verbal assurance that the animal is a service animal in addition to any documentation.
  7. DOT will act if an airline requires that a passenger with a service animal check in at the ticket counter since passengers without a service animal do not have to do that.
  8. DOT intends to clarify what constitutes a direct threat through the rulemaking process.
  9. DOT will not pursue enforcement actions against airlines should they require proof of the animal’s vaccination, training, or behavior with respect to emotional support animal and psychiatric service animals.
  10. DOT will not take action against carriers imposing reasonable restrictions on the movement of emotional support animals in the cabin so long as the reason for the restriction is the concern for the safety of other passengers and crew. Restrictions may include requiring that the animal be placed in a pet carrier, the animal stays on the floor at the passenger’s feet, or requiring the animal to be on a leash or tether. The particular restriction should be appropriate for the animal’s size.

IV

My Thoughts on DOT Interim Enforcement Guidance

  1. To my mind, it is completely arbitrary to distinguish between service animals and psychiatric service animals. Both animals are service animals and the requirements should be the same for both. That is not the case as things stand now under the Air Carrier Access Act. It is the case under title II and title III of the final ADA implementing regulations.
  2. It will be interesting to see how direct threat comes up. A good place to start would be Chevron v. Echazabal.
  3. If through rulemaking it was decided that emotional support animals are out, Sen. Burr’s from North Carolina bill for example, a lot of people who would need an emotional support animal to fly on the plane simply will not fly and will need to take other transportation.
  4. DOT does not actually say in its enforcement guidance how to figure out whether an animal is a service animal. However, by the questions they suggest, they clearly seem to be focusing on establishing the animal as engaged in recognition and response in a way related to a person’s disability.
818181

In law school, there is a saying that a student goes in with common sense and comes out with common law. However, there is still room for common sense in the law. Today’s blog entry is actually a two-for-one: service dogs with respect to title II and title III, and essential eligibility requirements. As usual, the blog entry is divided into categories and they are: common sense comes to service dogs; common sense and essential eligibility requirements introduction; Coleman v. Zatechka facts; court’s reasoning as to why plaintiff was qualified/otherwise qualified; and takeaways. The reader is free to focus on any or all of the categories.

I

Common Sense Comes to Service Dogs

On Friday of last week, a group of people with the Association of Higher Education and Disability were in town to do training. I have been a member of that group for several years now. The group focuses on helping people in disability services at colleges and universities be the best they can be. At that meeting were: Paul Grossman, Esq., an attorney with over 40 years of experience with the Office of Civil Rights of the US Department of Education now retired from OCR and now on his own; Jamie Axelrod, current president of AHEAD and head of Disability Services for the University of Northern Arizona; L. Scott Lissner, past president of AHEAD and head of Disability Services for The Ohio State University; Mary Lee Vance, Interim Director of Disability Services at Orange Coast College and past board member of AHEAD. Naturally, we got on the topic of service dogs. The people around the table without exception took the position that follow-up questions are permitted when it comes to ascertaining whether a dog is a service animal under title II and title III of the ADA when the disability is not obvious. Since there is nothing in the regulations suggesting follow-up questions are allowed, the question became what reasoning supports such a view. The answer made a lot of sense. That is, title II and §504 of the Rehabilitation Act by case law require an interactive process. Accordingly, dismissing a dog out of hand when the answers are not clear means you are not engaging in the interactive process. So, narrowly focused follow-up questions make sure that the requested accommodation is being denied properly after engaging in the interactive process.

Also, from a preventive law point of view, this approach makes a great deal of sense. It shows the person with a disability that the entity is trying to work with the individual to respect their needs and at the same time comply with the law. So, if after the narrowly focused follow-up questions, the animal winds up being a service animal, then everyone wins. If after those questions, the animal is not a service animal, then you have justifiably denied the animal, and most people will walk away with the notion that they have been treated fairly even if it didn’t work out for them. Note, if it is an emotional support animal rather than a service animal, then it still may be possible to have that animal on campus under the Fair Housing Act and under §504 of the Rehabilitation Act.

Finally, there was some talk around the table as to whether §504 mandates allowing emotional support animals in places other than the dormitories. Apparently, the §504 regulators have intimated as much, though nothing formal exists. It is hard to believe with all the blowback with emotional support animals of late, anything formal to that effect would be coming online soon. I also don’t see how such a view is consistent with the title II and title III DOJ regulations.

II

Common Sense and Essential Eligibility Requirements Introduction

AHEAD also has some great listservs. On one of those, the question came up as to whether a person with a disability could insist on having a roommate in the same way as any other college student without a disability could have. When I saw that, I responded with this: 42 U.S.C. §12182(b)(1)(A)(ii) provides:

“It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”

III

Coleman v. Zatechka Facts

Another individual on the listserv posted Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993).

The plaintiff was a 21-year-old student attending the University of Nebraska Lincoln and had cerebral palsy. She needed a personal attendant to assist her with dressing, showering, and toileting. Since she wanted a roommate to get the most out of the college experience, she completed and submitted the residence housing contract application indicating that she wanted a double room in a certain dormitory and preferred a non-smoking roommate. When she requested a double room and did not specify a particular roommate, she expected that her name would be placed in the pool of roommate candidates, and then she would be randomly assigned a roommate by the University Nebraska Lincoln housing department per their usual procedure. The Residence Hall Handbook said that roommate assignments would not be made on the basis of handicap (remember, this was 1991). Finally, she was admitted to the University, and there was no dispute that since she completed and submitted the residence housing contract application requesting a double room, she met all the requirements necessary to be randomly assigned a roommate.

It turns out that University Nebraska Lincoln had a policy saying that students with disabilities or special medical considerations needing personal attendant service, nursing care, or trained animal assistance would not get a roommate absent a mutual room request. The policy was a blanket policy with no individualized inquiry made when a student with a disability requested a roommate. That is, no individualized inquiries were made with respect to the extent of the student’s disability, the dimension of any equipment necessitated by the disability, or the number, duration and nature of any necessary personal attendant visits.

The University then did all kinds of things to try and get someone to be the student’s roommate. None of them worked. The University also repeatedly told plaintiff that she was free to have a roommate, but that it would not require another student to be her roommate. So, plaintiff originally filed a complaint with the United States Department of Education Office of Civil Rights and then withdrew it in favor of filing the lawsuit.

IV

Court’s Reasoning As to Why Plaintiff Was Qualified

  1. The only academic requirement for participation in the roommate assignment program is admission to the University.
  2. The only nonacademic criteria essential for participation in the roommate assignment program is submission of a completed residence hall contract application requesting a double room and not specifying a particular roommate.
  3. The defenses raised by the University are subject to the ADA’s screen out provisions, which can be found at 28 C.F.R. §35.130(b)(8).
  4. Defendant’s argument that plaintiff uses more than an equal amount of space in a double room than a student without a disability doesn’t wash because: 1) no individualized inquiry was conducted to determine the amount, size, or location of the equipment used by the plaintiff, rather the defendant simply made an assumption. The ADA prohibits using assumptions rather than facts and conclusions made from an individualized inquiry; 2) defendant’s challenged policy allowed students in wheelchairs to have roommates so long that they did not require attendant care or a trained animal. Accordingly, the wheelchair utilizing too much physical space argument simply doesn’t make any sense; and 3) the concern about the utilization of physical space is not a concern applied to students without disabilities. Accordingly, the equal amount of space is not necessary to the roommate assignment program and was not an essential eligibility requirement that a student must meet in order to be qualified to participate in the program.
  5. Defendant’s argument that plaintiff cannot receive frequent daily visitors that might disrupt a roommate’s solitude doesn’t wash because: 1) plaintiff’s personal attendant visits are not unusually disruptive. Two of the three daily visits are relatively brief with a good portion of those visits involving the personal attendant and the plaintiff not even being in the dormitory room. Also, the daily visits are scheduled, predictable, and amount to nothing more than assisting plaintiff in the daily routine of dressing, showering, and toileting, which is something all roommate do. No medical care is provided during the visits and no evidence existed as to why the roommate could not remain in the room during the entire visit if she wished; 2) any such disruptions are common disruptions present in all roommate situations regardless of whether roommate has a disability. It isn’t unusual for roommate to awaken or retire at different times due to class schedules or personal preference. Further, the nature of dormitory living requires roommates needing to be tolerant of each other’s sleeping habits and accept the fact they are not always operating on identical schedules; 3) roommates regardless of disabilities are required to tolerate frequent visitors. That is, frequent daily visit do not uniformly disqualify students without disabilities from participation in the roommate assignment program and they should not disqualify a plaintiff with a disability from participation in the roommate assignment program; 4) plaintiff has some degree of flexibility as to when and where the attendant care visits take place. For example, she was willing to modify the times her personal attendant arrived so her roommate was less likely to be disturbed by the visit. Accordingly, disruption of solitude cannot properly be considered an essential eligibility requirement that a student must meet in order to participate in the roommate program.
  6. If defendant’s essential eligibility requirements arguments were actually intended to screen out undesirable roommate candidates using too much space or having frequent daily visitors, one would expect to see those requirements apply to all students are asking for an assigned roommate, which is not the case. So, the additional requirements are not essential to the roommate assignment program. Instead, they are nothing more than an attempt to legitimize a policy of excluding students with disabilities from the roommate assignment program.
  7. A blanket policy of excluding certain persons with disabilities from the roommate program violates both the Rehabilitation Act and the ADA.
  8. While a school might have a policy allowing students with disabilities to live in single rooms because of being uncomfortable with an assigned room due to attendant care visits, nothing in the Rehabilitation Act or the ADA requires a plaintiff to accept such accommodations. Further, even where accommodations have been made, qualified individuals with disabilities have to be given the option to participate in regular programs if they choose. That is, separate program designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in integrated activities. See this case for example. That is, plaintiff cannot be required to accept such accommodation simply because they exist. Rather, she has to be given the option of participating in the regular roommate assignment program if she so desires.
  9. Not requiring students without disabilities to room with students with disabilities fosters the very attitudes and stereotypes about persons with disabilities that the ADA is designed to eliminate. In other words, that policy lends support to the idea that students with disabilities are less desirable and that it is okay that others not be required to live with them, which then places less value on the human worth of individuals with disabilities because of their disabilities. It also violate the ADA’s purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  10. In footnote 15 of the opinion, the court noted that since the Rehabilitation Act applies to all operations of a college, university, or postsecondary institution, the University’s practice of randomly assigning roommate to students requesting double rooms was a program or activity within the meaning of the Rehabilitation Act.

V

Takeaways:

  1. I am persuaded that narrow follow-up questions to whether an animal is a service animal are permissible. However, the questions have to be narrowly focused. It really isn’t all that different than requesting narrowly focused information to establish that an employee has a disability under title I of the ADA. The advantage of the narrowly focused approach is that it gives everyone the opportunity to definitively assess whether the animal is a service animal. It also makes it easier for businesses to properly assess whether the animal is a service animal as asking only those two questions without follow-up will not get you a lot of information. So, how would that play out in practice? Let’s say someone shows up with an animal and does not have an obvious disability. You ask the standard two questions. The person responds that, “the animal is necessary because of a disability and that the animal keeps him calm.” The reply to that question is a pass as to the first, but a fail as to the second. So, a follow-up question could be something like, “what work or task has the animal been trained to do that keeps you calm?” It doesn’t have to be that particular question, but the point is that the question is a narrowly focused follow-up question.
  2. Coleman has been cited favorably over the years. What is refreshing about the decision, is that it uses a lot of common sense about the college environment to assess essential eligibility requirements.
  3. Coleman also stresses the importance of paying attention to title II’s final implementing regulations screen out provisions.
  4. Setting up a separate program for persons with disabilities may or may not run afoul of the screen out provisions. Even so, if a person wants to participate in the same program as students without disabilities, then that needs to happen unless you can show an undue burden or a fundamental alteration. I suppose you could try to show that the student is not qualified/otherwise qualified as the defendant’s tried to do in this case, but that isn’t going to be easy to accomplish. It also raises the importance of knowing what your essential eligibility requirements are and making sure they don’t unnecessarily screen out persons with disabilities. See this blog entry for example.
  5. Graham Spanier was president of the University of Nebraska Lincoln at this time. He then moved on to Penn State…..
  6. Blanket policies are never a good idea. See this blog entry for example.
  7. The individualized inquiry is the heart of the ADA and the Rehabilitation Act.
  8. Inclusion efforts must include persons with disabilities.
  9. What about therapy animals? Are they service animals or emotional support animals? Well, it may be neither. However, for purposes of deciding whether the therapy animal can go anywhere a service animal can go, it would have to be determined whether it is a service animal. So, the answer is depends. Therapy animals do get training, but are they engaged in recognition and response? If so, then the therapy animal is a service animal. Also, remember that service dogs can be situational. For example, my dog is a service dog, but only in the house.

Hope everyone had a great Mother’s Day.

Today’s blog entry is a case that I’ve had in my pipeline for quite a long time. I actually know the plaintiff’s attorney on the case, Cheryl Lagare of Lagare, Attwood & Wolfe. We have spoken a few times, and she is a fabulous CLE speaker. When this case came out, I congratulated her and asked her if it would be okay if I blogged on it, and she said go for it. Well, that was several months ago, but here goes. The case is Lewis v. City of Union City, Georgia, which can be found here. This case involves both the actual disability prong and regarded as prong of what it means to have a disability under the ADA. It also explores essential functions and direct threat as well. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning as to whether plaintiff had an actual disability; court’s reasoning as to whether plaintiff was regarded as having a disability; court’s reasoning as to whether plaintiff was qualified; court’s reasoning as to whether plaintiff was a direct threat; survivability of summary judgment motion; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

In January 2009, Lewis, a police officer, suffered a small heart attack. It was unusual in the sense that the cardiac catheterization showed no clot and no disease in her heart even though heart attacks are generally caused by a clot inside the coronary arteries. While the cardiologist who treated her described the damage to her heart as being minuscule to small, enzyme levels confirmed the diagnosis of a heart attack. The doctor also found that the global function of the heart was unaffected, but noted that people who have had heart attacks tend to be at greater risk for subsequent heart attacks. Her primary care doctor said that she did not have heart disease that chronically affected her life, and therefore, cleared her to return to work without any cardiac restrictions because there weren’t any blockages to her heart.

Prior to 2010, the Union City Police Department allowed officers to choose which nonlethal weapons they carried. However, in early 2010, the Police Chief aat the time purchased tasers for all Union City officers and required each officer to carry one. While the manufacturer of the tasers, Taser International, does not require training to receive a Taser shock to be certified in Taser use, the Police Chief required his officers to receive a Taser shock in order to be certified in Taser use. Accordingly, he required his officer to receive a five second shock as part of the Taser training and gave justification for that requirement.

When Lewis found out about this training, she went and visited her primary care doctor. Her doctor shared her concerns that the electrical current could cause undue stress to her heart, and then wrote a letter to the Police Chief. That letter explained that she had been treating Lewis for several chronic conditions, including a heart condition, and that she would not recommend a Taser gun or oleoresin capsicum (OC) spray be used on or near Lewis. The letter asked the department to take that recommendation into consideration when making decisions about occupational training.

On June 17, following the Chief’s receipt of the letter from plaintiff’s physician, the Assistant Chief immediately placed her on administrative leave without compensation until such time as her physician released her to return to full and active duty. That letter did not fix any time frame for the plaintiff to be medically cleared to return to full and active duty. It also said that while she was being placed on leave without pay with the option to use her accrued leave until leave expired.

Plaintiff then wrote the Chief asking permission to resume her duties as a detective explaining that she was only asking for an accommodation on the training. She also sent a second letter requesting permission to seek temporary employment elsewhere while the Union City Police Department and her Doctor figured out some conclusion on the medical matter. She expressed concern in that letter that her sick and vacation leave had nearly run out, and she needed to be able to provide for family.

The Chief directed the Assistant Chief to tell the plaintiff that her request to return to work was denied and claimed that her Doctor’s letter essentially made it impossible for her to work or be at work. It denied her request to resume her duties until her doctor released her for duty. As before, no time frame was picked for obtaining such a medical release.

When plaintiff’s Doctor went on vacation, an email correspondence ensued where the Assistant Chief mentioned that they were constrained by the FMLA even though the plaintiff had never applied for FMLA leave, was not on FMLA leave, and was on administrative leave instead.

On July 8, the Assistant Chief terminated the plaintiff without speaking to the human resources manager. He also did not make any attempt to contact her physician or to have anyone else from the department contact her. Her physician had been on vacation and was not able to get the paperwork to the department until July 12. On July 8, plaintiff’s primary care doctor spoke with Assistant Chief Brown. To plaintiff’s Doctor recollection, the conversation was unpleasant and left her quite offended because she felt the Assistant Chief questioned her professionalism and her professional opinion. She made clear to the Assistant Chief that her opinion was based solely on a professional medical judgment and that she did not do things because patients tell her to do them.

In November of 2012, plaintiff filed suit alleging violations of the ADA as well as race and gender discrimination under §1981 and title VII. When the District Court granted defendant’s motion for summary judgment, plaintiff appealed.

II

Court’s Reasoning on Whether Plaintiff was a Person with an Actual Disability?

  1. Plaintiff argued that she was substantially limited in a major life activity of breathing and sleeping. However, the only such evidence in the record was her own testimony that she had periodic shortness of breath and her primary care physician’s testimony that the shortness of breath could, but in her case, did not affect plaintiff’s ability to sleep. The record was completely absent of any evidence of the severity, frequency, and duration of the shortness of breath episodes. Further there was not any evidence to the extent to which the episode limited plaintiff’s ability to sleep or that could lead a reasonable jury to conclude that she was substantially limited in a major life activity.

III

Court’s Reasoning on Whether Plaintiff Was Regarded as Having a Disability

  1. The ADA, 42 U.S.C. §12102(3)(A), provides that an individual is regarded as having a disability if he or she establishes that she had been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment regardless of whether that impairment limits or is perceived to limit a major life activity.
  2. All kinds of evidence existed to raise a genuine issue of material fact as to whether Union City regarded the plaintiff as having a disability, including the following: the Chief was aware of the heart attack as he was a witness to it; the June 17 letter putting the plaintiff on leave referred to her chronic conditions and instructed her to complete FMLA paperwork; Chief Brown’s July 1 letter forbade plaintiff from returning to work until everything was cleared up with her Doctor and said that her Doctor’s letter made it impossible for her to be at work or for her to work. That letter further concluded she could not return until her doctor released her for duty; the July 6 letter from the Assistant Chief again referred to the possibility of the plaintiff taking leave under FMLA; and the department’s own stated reason for putting plaintiff on leave-data fear for her safety in view of her heart condition, demonstrated the department’s belief that plaintiff’s medical condition set her apart from other police officers.
  3. The EEOC guidance specifically gives the case of an employer being considered as regarding an employee as having a disability where the employer terminates an employee with angina from a manufacturing job requiring the employee to work around machinery because they believe the employee poses a safety risk to himself or others if he were suddenly to lose consciousness. It also notes while the direct threat defense may exist, that is a separate inquiry from whether the person has a disability. The EEOC guidance illustrates that an employer taking an adverse action because it fears the consequences of an employee’s medical condition regards the employee as having a disability.

IV

Court’s Reasoning on Whether Plaintiff was an Otherwise Qualified/Qualified Individual

  1. Evaluating essential functions is done on a case-by-case basis by looking at several different factors, such as the employer’s judgment, especially when it is a Police Department.
  2. Other factors to look at (per the EEOC), include any written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the employee to perform the function; the terms of any collective bargaining agreement; the work experience of past employees in the job; in the current work experience of employees in similar jobs.
  3. Although the employer’s judgment is entitled to substantial weight, that factor alone is not conclusive.
  4. The City’s written job description for the detective position does not mention anywhere the necessity for a detective either to carry or to be exposed to OC spray or a Taser shock.
  5. In the section listing various physical demands of the job, there was no such mention of OC spray or Taser shock. Same goes for the work environment section of the job description.
  6. Plaintiff offered evidence that previously, detectives were given the choice of what nonlethal weapon or weapon to carry.
  7. Neither party disputed that Taser International did not require trainees to receive a shock in order to become certified in Taser use.

V

Court’s Reasoning Finding That Plaintiff Was Not a Direct Threat

  1. The direct threat defense requires an analysis of the individual’s ability to perform safely the essential functions of the job.
  2. Since the court held a genuine dispute of material fact existed as to what the essential functions of the police detective were, the court could not resolve the question of whether she could perform those yet undefined essential functions safely.
  3. Citing to Chevron v. Echazabal, a direct threat must be based upon reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job determined after considering, among other things, the imminence of the risk and the severity of the harm likely to occur.

VI

Survivability of Summary Judgment Motion

  1. With respect to surviving a summary judgment motion, the court held that a convincing mosaic existed to show that the employer discriminated intentionally against the plaintiff. For another blog entry discussing convincing mosaic, see this blog entry.

VII

Takeaways

  1. There are a lot of things Union City did wrong here, among them: 1) insisting on a method of certification for use of a Taser that wasn’t even called for by the manufacturer; 2) refusing to engage in any meaningful interactive process; 3) focusing on a full return to work, certainly implicitly; 4) acting unprofessionally with plaintiff’s primary care physician; 5) terminating the plaintiff without speaking to human resources manager or legal counsel; 6) putting the plaintiff on unpaid leave until a full return to work was signed off on and; 7) imposing the FMLA on the situation when it was not even involved.
  2. Just because a person does not have an actual disability doesn’t mean they are not protected as regarding as having a disability. With respect to regarded as, it is not necessary to show a substantial limitation on a major life activity. True, a person who is regarded as having a disability is not entitled to reasonable accommodations. However, you can’t take adverse action against that person either because of the disability you are regarding.
  3. This court seems to suggest that it would cover fear of a future disability under the ADA. See this blog entry for example.
  4. In the 11th Circuit, an employer’s judgment as to what are the essential functions, is not conclusive by itself.
  5. Make sure you keep job descriptions current and that they reflect the actual job.
  6. Not every court is following the convincing mosaic line of thinking.
  7. Direct threat is a term of art and you just can’t make assumptions. Go through the Chevron analysis to get it right.
  8. To prove an actual disability, you do have to show a substantial limitation on a major life activity. With the amendments to the ADA, doing that is not as difficult as it used to be, but it still has to be done.
  9. Looking to employer’s judgment as to essential functions comes directly from the ADA itself. The EEOC has seven factors and three situations addressing essential functions as well. All of that is persuasive, but not dispositive, and there are variations among the courts.